Written by: Jasmine Englert
As discussed in the previous article, Snap Removal in Louisiana Part 1 of 2, snap removal is the practice of removing a state action to federal court based on diversity jurisdiction after the Petition has been filed in state court, but before a forum defendant has been served the Petition. In Texas Brine, the 5th Circuit held that based on the plain language of the removal statute, 28 USC § 1441(b)(2), there is a narrow window of time for a defendant who knows the Petition has been filed, to remove the case to federal court prior to being “properly joined and service” by a forum defendant. See Tex. Brine Co. v. AAA, 955 F.3d 482 (5th Cir. 2020); Gibbons v. Brystol-Myers Squibb Co., 919F.3d 147 (2d Circ. 2019), Encompass Inc. Co. v. Stone Mansion Rest., Inc., 902 f.3d 147 (3d Cir. 2018.) What was left unanswered by the 5th Circuit in Texas Brine, was whether a forum defendant could move for snap removal if they have not yet been served.
The Eastern District of Louisiana has weighed in on this question. In Margaret Chastain v. New Orleans Paddlewheels, Inc. (2021), the Eastern District of Louisiana held that a forum defendant, unserved, could remove a state court action to federal court.
In Chastain, Plaintiff, Margaret Chastain sued defendant, New Orleans Paddlewheels, Inc. (“NOPI”) in the 34th Judicial District Court for the Parish of St. Bernard. Service was improperly made due to a deputy sheriff serving an individual other than the agent for service of process. Margaret Chastain v. New Orleans Paddlewheels, Inc., No. CV 21-1581, 2021 WL 5578443, (E.D. La. Nov. 30, 2021). NOPI filed a Notice of Removal on the basis that the 5th Circuit allowed for snap removal when a forum defendant had not been “properly joined and served.” Id. Plaintiff argued that Texas Brine, only allowed for non-forum defendants to remove a case prior to service of the forum defendant. Id.
As in Texas Brine where the 5th Circuit used persuasive decisions from other Circuits to come to a decision, the Chastain court looked to a series of district court decisions in the 5th Circuit who had extended the logic of the 5th Circuit’s decision to allow a forum defendant to snap remove a case to federal court if they had not yet been properly joined and served. Id. The Chastain court held that the text of 28 USC § 1441(b)(2) was unambiguous and when applying the text as written by Congress, the plain language of the statute (“properly joined and served”) allowed for the application of snap removal by forum defendants. Id. Since the sole defendant in Chastain was a forum defendant, unserved, removal was procedurally proper. Id. Further, the Chastain court noted that when the 5th Circuit made its determination in Texas Brine, it too, relied upon case law allowing for a forum defendant to snap remove. Id.
The Western District of Louisiana also weighed in on whether a forum defendant could snap remove. In Billie Lou Miller v. Karen J. Miller (2022) and Hvamstad v. National Interstate Ins. Co. et al. (2022), the Western District of Louisiana held that a forum defendant, unserved, could remove a state court action to federal court.
In Miller, Defendant, Kay Miller, filed a succession proceeding to probate a will and be confirmed as executrix. Miller v. Miller, No. 22-CV-335, 2022 WL 1397721, (W.D. La. Apr. 11, 2022), report and recommendation adopted, No. 5:22-CV-00335, 2022 WL 1321126 (W.D. La. May 3, 2022). In her capacity she sold a Rolls Royce. Id. The deceased’s widow, Billie Lou Miller, challenged the sale of the vehicle with a summary proceeding petition. Id. The petition named Kay Miller individually and in her capacity. Id. Kay, a forum defendant, removed the summary proceeding but not the succession proceeding on the basis of diversity jurisdiction. Id. In Miller, the argument was made that because Billie Lou e-mailed a copy of the Petition on the date of filing of the Petition, that action effectuated “service” even though proper service by the sheriff’s office occurred seven days after the Petition was filed. Id. Because the Supreme Court previously rejected arguments that delivery of a courtesy copy or other informal service would suffice as “service” under the statute, that would not trigger the removal period. Id. The Miller court determined that formal service would likewise be required to trigger the forum-defendant rule and prevent snap removal. Id. The Miller court used the decisions in Texas Brine and Chastain along with other persuasive decisions to conclude removal was proper for a forum defendant unserved. Id.
In Hvamstad, Plaintiff, Betty Hvamstad (citizen of Texas) filed a wrongful death action in the 3rd Judicial District Court for the Parish of Lincoln against Defendants, Elizabeth Hill (citizen of Louisiana), Pafford Emergency Medical Services, Inc. (citizen of Louisiana); and National Interstate Insurance Company (citizen of Ohio), regarding a motor vehicle accident causing the death of her husband. Hvamstad v. Nat'l Interstate Ins. Co., No. 3:22-CV-01431, 2022 WL 17086690, (W.D. La. Nov. 3, 2022), report and recommendation adopted, No. 3:22-CV-01431, 2022 WL 17085936 (W.D. La. Nov. 18, 2022). Defendants together, filed a Notice of Removal before anyone had been served. Id. Here, Plaintiff argued because no one had been served, removal was improper. Id. The Hvamstad court, noted that although the 5th Circuit had not explicitly addressed whether an unserved forum defendant could remove a case to federal court, it did endorse a 2nd Circuit interpretation of 28 USC § 1441(b)(2) holding that such a removal was proper. Id. Additionally, the Hvamstad court referenced Texas Brine, Miller, and Chastain to support its decision. Id. The Hvamstad court sought no reason to depart from the previous holdings and held that a forum defendant, unserved, could snap remove to federal court. Id.
Although, the Middle District of Louisiana concurs with the 5th Circuit decisions regarding permissible non-forum defendant snap removal, it appears based on published cases, that the Middle District has not had the opportunity to weigh in on the question of whether a forum defendant, unserved, can snap remove.
Snap removal is an exciting strategy for those on the defense. As e-filing continues to grow in popularity and become the “new” normal procedure for filing lawsuits, one can expect snap removal to be more widely discussed and approved in other jurisdictions.
Part 1 of this series can be found here.